Employers need to be more flexible when work schedules conflict with childcare arrangements, court rules

Employers need to be more understanding and responsive when employees complain their work schedules conflict with their parental duties, a new Federal Court of Appeal ruling suggests.

The court upheld a human rights complaint by a Pearson International Airport employee whose bosses denied her request to switch from rotating shifts to fixed shifts so she could secure childcare for her two toddlers.

The ruling for the first time clarifies what employers’ obligations are when it comes to accommodating employees’ child-care circumstances, experts said Thursday.

“Many decisions over the decades have dealt with this issue, but it’s one of the first from an appellate level court that provides us with some clarity and provides us with a good idea where [employers] have to accommodate and where they don’t,” said Andrew Zabrovsky, a labour and employer lawyer in Toronto.

Under provincial and federal human rights legislation, employees are protected from discrimination based on “family status,” but it’s always been a bit unclear what that means. The federal appeal court made it clear that protections should extend to parental obligations that cannot be neglected, such as providing childcare.

‘‘Without reasonable accommodation for parents’ childcare obligations, many parents will be impeded from fully participating in the work force so as to make for themselves the lives they are able and wish to have. The broad and liberal interpretation of human rights legislation requires an approach that favours a broad participation and inclusion in employment opportunities for those parents who wish or need to pursue such opportunities,’’ wrote Justice Robert M. Mainville.

Until now, there was conflicting case law that suggested that those seeking accommodations on the basis of parental obligations needed to meet a higher threshold than those seeking accommodations on the basis of, say, religious needs or disability, said Danielle Bisnar, a Toronto lawyer who represented the Women’s Legal Education and Action Fund, which was an intervenor in the case. The appeal court ruling creates a level playing field, she said.

Where the court drew the line was extending protections to “personal family choices,” such as attending children’s dance classes, sporting events and field trips.

The court went one step further to lay out the test for determining whether discrimination had occurred. The court said employees must show that “reasonable” efforts were taken to secure childcare on their own and that there were no alternative solutions.

The case centred around the complaint of Fiona Johnstone. She and her husband were full-time employees with the Canada Border Services Agency at Pearson airport. Because they worked separate, rotating shifts, it was difficult for them to provide childcare on a reliable basis.

Ms. Johnstone asked her employer if she could switch to a fixed shift instead. But CBSA would only provide her a fixed shift on a part-time basis and said it had no legal duty to accommodate her wishes. Ms. Johnstone subsequently filed a human rights complaint.

The Canadian Human Rights Tribunal sided with Ms. Johnstone and ordered CBSA to pay her for lost wages and to provide additional compensation.

The Federal Court of Canada upheld that decision and found that CBSA could have accommodated Ms. Johnstone’s request without undue hardship. The CBSA appealed the decision, but that appeal was rejected this month by the Federal Court of Appeal.

Given that so few of these cases have gone to court, Mr. Zabrovsky suspects that employers and employees generally are able to work out such conflicts on their own. Still, the court ruling entrenches the notion that employers need to be “creative and flexible” in terms of providing accommodation when an employee has tried everything and they still aren’t able to meet their work and parental obligations, he said.

While the appeal court ruling technically applies only to the federal sector, Mr. Zabrovksy said the case is likely to be influential and persuasive in most Canadian jurisdictions. He can’t see why other courts and tribunals wouldn’t adopt the test laid out in this decision.

Ms. Bisnar added that this decision will likely influence future decisions in cases where employees have obligations to provide care to elderly parents or disabled family members.

“Those areas are still unsettled but will take significant guidance from the framework in this case,” she said.

No decision has been made whether the Johnstone case will be appealed to the Supreme Court of Canada.